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A federal appeals court on Friday upheld a narrowed version of the gag order against Donald Trump in his federal election interference case, leaving Trump free to speak about special counsel Jack Smith.
Specifically, the U.S. Court of Appeals for the District of Columbia Circuit affirmed U.S. District Judge Tanya Chutkan's order to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or potential witnesses concerning their participation in the case.
The three-judge circuit panel wrote:
The Order is also affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result.
The panel vacated the order "to the extent it covers speech beyond those specified categories."
As a reminder, here's what Chutkan's original gag order said:
All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
The panel on Friday wrote that Chutkan could restrain aspects of Trump’s speech that present a “significant and imminent risk to the fair and orderly administration of justice,” but that her original order wasn’t “narrowly tailored,” so the appeals court modified its scope “to bring it within constitutional bounds.”
Specifically, the circuit judges said Chutkan’s ban on speech that “targets” witnesses and trial personnel “reaches too far.” Rather than prohibiting speech that “targets” known or reasonably foreseeable witnesses, the panel said the order “must focus more directly and narrowly on comments that speak to or are about those persons’ potential participation in the investigation or in this criminal proceeding.”
Notably, the panel left room for Chutkan to impose additional restrictions in the future.
The appeals court said Chutkan’s order went too far in prohibiting any public statements that are directed to or aimed at prosecutors or court staff. For similar reasons, the panel said Chutkan shouldn’t have restricted speech about Smith himself, reasoning that her order already allows statements about the Justice Department and that, as a high-ranking official overseeing the prosecution, Smith is “no more entitled to protection from lawful public criticism than is the institution he represents.”
The panel made clear that Trump can still criticize the current administration, the DOJ, the special counsel, and make statements that this prosecution is politically motivated or that he is innocent of the charges against him.
Notably, the panel left room for Chutkan to impose additional restrictions in the future, pointing out that she imposed the order based on risks of influencing witnesses and intimidating or harassing other trial participants, and not on the need to ensure jury impartiality or to protect the jury from outside influence. The appeals panel wrote that "nothing in this opinion speaks to the district court’s authority to consider additional measures to protect the jury pool and jury should such protection prove necessary going forward.”
Rejecting Trump’s position that his speech can only be limited if it poses a “clear and present danger” to the trial process, the panel said his stance “gives no inch to the need to protect the criminal justice process.” The appeals judges observed that some of Trump’s speech “poses a significant and imminent threat to the fair and orderly adjudication of the criminal proceeding against him,” noting, among other things, that he has “repeatedly attacked those involved in this case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony.”
Trump’s gag order in his New York civil fraud trial was also recently reinstated.
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